Citation Nr: 0904914
Decision Date: 02/11/09 Archive Date: 02/13/09
DOCKET NO. 06-15 271 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an initial rating higher than 10 percent
for hypertension.
2. Entitlement to an initial rating higher than 30 percent
for a mood disorder.
3. Entitlement to an initial rating higher than 20 percent
for degenerative joint disease, residuals of left knee
trauma.
4. Entitlement to an initial rating higher than 10 percent
for right knee patellofemoral syndrome.
5. Entitlement to an initial rating higher than 10 percent
for residuals of right wrist injury.
6. Entitlement to an initial rating higher than 10 percent
for residuals of left wrist injury.
7. Entitlement to a total disability evaluation based on
individual unemployability due to the Veteran's service-
connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K.S. Hughes, Counsel
INTRODUCTION
The Veteran served on active duty from February 1979 to
August 1996.
This appeal to the Board of Veterans' Appeals (Board) arose
from rating decisions of the Department of Veterans Affairs
(VA) Regional Office (RO) in Montgomery, Alabama. In
December 2008, the Veteran testified at a Travel Board
hearing before the undersigned Veterans Law Judge.
With the exception of entitlement to an initial rating higher
than 10 percent for hypertension, the remaining issues listed
on the title page of this decision are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDING OF FACT
Throughout the appeal period, the Veteran's service-connected
hypertension has been manifested by diastolic pressure that
is less than 110 and systolic pressure that is less than 200.
CONCLUSION OF LAW
The schedular criteria for the assignment of a disability
rating greater than 10 percent for hypertension have not been
met for any portion of the appeal period. 38 U.S.C.A.
§§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.104,
Diagnostic Code 7101 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
As provided for by the VCAA, VA has a duty to notify and
assist claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper notice from VA must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide in accordance with 38 C.F.R. § 3.159(b)(1). This
notice must be provided prior to an initial unfavorable
decision on a claim by the agency of original jurisdiction
(AOJ), in this case, to RO. Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
When, however, for whatever reason, there was no or
inadequate pre-decisional VCAA notice, the United States
Court of Appeals for the Federal Circuit (Federal Circuit
Court) has held that a statement of the case (SOC) or
supplemental SOC (SSOC) can constitute a "readjudication
decision" that complies with all applicable due process and
notification requirements if adequate VCAA notice is provided
prior to the SOC or SSOC. See Mayfield v. Nicholson, 499
F.3d 1317 (Fed. Cir. 2007) (Mayfield IV). As a matter of
law, the provision of adequate VCAA notice prior to a
readjudication "cures" any timing problem associated with
inadequate notice or the lack of notice prior to an initial
adjudication. See also Prickett v. Nicholson, 20 Vet.
App. 370, 376 (2006).
Here, the Veteran is challenging the initial evaluation
assigned following the grant of service connection for
hypertension. In Dingess v. Nicholson, 19 Vet. App. 473
(2006), the Court held that in cases where service connection
has been granted and an initial disability rating and
effective date have been assigned, the typical service-
connection claim has been more than substantiated, it has
been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled. Id. at 490-91. In the
present case, letters dated in October 2003 and June 2004,
prior to the October 2004 rating decision on appeal, provided
the Veteran notice of the requirements for establishing
service connection. In addition, a March 2005 letter
notified the Veteran of the requirements for establishing
increased ratings and his claim was readjudicated in a June
2005 rating decision as well as an April 2006 SOC and
subsequent April 2008 SSOC. Thus, after providing the
required notice, the RO reconsidered the claim - to include
addressing any additional evidence received in response to
the notices - thereby "curing" any defect as to the timing
of this notice. Accordingly, absent any error in the timing
or content of VCAA notice, a prejudicial error analysis by
way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) is
not warranted in the present case.
The Board observes that the Court recently issued a decision
in the case of Vazquez-Flores v. Peake, 22 Vet. App. 37
(2008), regarding the information that must be provided to a
claimant in the context of an increased rating claim. As
this case does not apply to initial rating cases, further
discussion of its provisions is not required.
Regarding the duty to assist, the RO has obtained the
Veteran's VA and private treatment records, provided him with
VA examinations, and he has been afforded hearings before a
hearing officer at the RO as well as before the undersigned
Veterans Law Judge. Therefore, the duty to assist has been
satisfied and there is no reasonable possibility that any
further assistance to the Veteran by VA would serve any
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Because VA's duties to notify and assist have been met, there
is no prejudice to the Veteran in adjudicating this appeal.
One final preliminary point bears mentioning, the Board has
reviewed all the evidence in the appellant's claims file.
Although the Board has an obligation to provide adequate
reasons and bases supporting this decision, there is no
requirement that the Board discuss each and every piece of
evidence submitted by the appellant or obtained on his
behalf. Rather, the Board's analysis below will focus
specifically on what evidence is needed to substantiate the
claim and what the evidence in the claims file shows, or
fails to show, with respect to the claim. Gonzales v. West,
218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v.
Gober, 14 Vet. App. 122, 128-30 (2000).
Analysis
The Veteran contends that his service-connected hypertension
warrants an evaluation in excess of 10 percent.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R., Part 4. The Rating Schedule
is primarily a guide in the evaluation of disability
resulting from all types of diseases and injuries encountered
as a result of or incident to military service. The ratings
are intended to compensate, as far as can practicably be
determined, the average impairment of earning capacity
resulting from such diseases and injuries and their residual
conditions in civilian occupations. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria for that rating. 38 C.F.R. § 4.7.
Because this is an appeal from an initial grant of service
connection and originally assigned rating, separate ratings
may be assigned for separate time periods that are under
evaluation. That is, appellate review must consider the
applicability of "staged ratings" based upon the facts
found during the time period in question. Fenderson v. West,
12 Vet. App. 119 (1999). In order to evaluate the level of
disability and any changes in condition, it is necessary to
consider the complete medical history of the veteran's
condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594
(1991).
In an October 2004 rating decision, service connection was
granted for hypertension under Diagnostic Code 7101 and a ten
percent evaluation was assigned effective from November 2002.
The Veteran disagreed with the initial 10 percent schedular
rating assigned and this appeal ensued.
VA and private treatment records dated from as early as
November 2000 to the present fail to include any blood
pressure readings which reveal diastolic pressure of 110 or
more, or systolic pressure of 200 or more.
An August 2005 report of VA examination for hypertension
notes that the Veteran reported that he was diagnosed with
hypertension in 1992, takes Verapamil and
hydrochlorothiazide, and that he experienced daily headaches
which resolve with rest for one hour. He does not check his
blood pressure when he has these headaches. He also reported
that he has not been diagnosed with any cardiac disease or
any other arteriosclerotic complications of hypertension. On
examination, the Veteran's blood pressure reading was 146/84
sitting, 146/79 standing, 148/78 lying down, his heart was
regular, and his lungs were clear. The impression included
hypertension, under control.
VA and private outpatient treatment records, dated one year
prior to his November 2002 claim for service connection to
the present, fail to include any blood pressure readings
which reveal diastolic pressure of 110 or more, or systolic
pressure of 200 or more. These records reflect that blood
pressure readings ranged between 154/100 (December 2003) and
167/90 (May 2003).
For the entire appeal period, the Veteran's service-connected
hypertension has been rated 10 percent disabling under
Diagnostic Code 7101, used to evaluate hypertensive vascular
disease (hypertension and isolated systolic hypertension).
Under this Diagnostic Code, a 10 percent rating is assigned
for hypertension when diastolic pressure is predominately 100
or more; or when systolic pressure is predominantly 160 or
more; or when there is a history of diastolic pressure
predominantly 100 or more and continuous medication for
control is required. A 20 percent rating is assigned when
diastolic pressure is predominantly 110 or more, or systolic
pressure is predominantly 200 or more. A 40 percent rating
is assigned when diastolic pressure is predominantly 120 or
more. A maximum 60 percent rating is assigned when diastolic
pressure is predominantly 130 or more. 38 C.F.R. § 4.104,
Diagnostic Code 7101 (2008).
The Board notes that during the pendency of this appeal, a
change was made to the criteria used to evaluate disabilities
evaluating hypertension. See 71 Fed. Reg. 52,457-52,460
(Sept. 6, 2006). This change added a Note (3) to the
criteria at Diagnostic Code 7101 that directed that
hypertension is to be evaluated separately from hypertensive
heart disease and other types of heart disease.
As indicated above, to receive the next higher rating of 20
percent, the Veteran's diastolic pressure, i.e., the bottom
number of his blood pressure reading, must be predominantly
110 or more, or his systolic pressure, i.e., the top number
of his blood pressure reading, must be predominantly 200 or
more. The evidence in this case demonstrates that the
Veteran's diastolic pressure is predominantly below 110, and
his systolic pressure is predominantly below 200, and thus
his hypertension is no more than 10 percent disabling.
The Board has considered the Veteran's assertions that his
blood pressure is more disabling than reflected by his
current disability rating. However, the Board is limited to
those factors that are included in the rating criteria
provided by regulations for rating that disability. To do
otherwise would be error as a matter of law. Massey v.
Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2
Vet. App. 625, 628 (1992). The pertinent criteria for rating
hypertension in this case involves an assessment of the
predominant systolic and diastolic pressure readings of
record. See 38 C.F.R. § 4.104, Diagnostic Code 7101.
Accordingly, the documented blood pressure readings of record
are essentially the only medical findings which can be
considered in concluding that an increased disability rating
for hypertension is not appropriate.
As there has been no indication of hypertensive heart disease
or any other type of heart disease shown during the appeal
period, nor are any such conditions currently service-
connected, there is no basis for any separate evaluation as
discussed under Note (3) to the criteria at Diagnostic Code
7101. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2008).
Following a careful review of the evidence, the Board finds
that the Veteran's hypertension is not shown to be more than
10 percent disabling. The Veteran's blood pressure has been
read on numerous occasions over the course of this appeal.
The medical reports, however, show systolic readings which
have been entirely below 200 and diastolic readings which
have been entirely below 110.
Accordingly the preponderance of the evidence is against the
claim for a disability rating greater than 10 percent for the
service-connected hypertension over the entire course of this
appeal. See Fenderson v. West, 12 Vet. App. 119 (1999).
There is no evidence that the manifestations of the Veteran's
service-connected hypertension is unusual or exceptional to
demonstrate that the rating schedule is inadequate for
determining the proper level of disability with respect to
this disorder. Therefore, the Board finds that the criteria
for submission for an extra-schedular rating pursuant to
38 C.F.R. § 3.321(b)(1) are not met. See Thun v. Peake, 22
Vet. App. 111 (2008); see also Bagwell v. Brown, 9 Vet.
App. 237 (1996).
As the preponderance of the evidence is against the claim,
the benefit-of-the-doubt doctrine is inapplicable and the
appeal is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3;
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Entitlement to an evaluation in excess of 10 percent for
hypertension is denied.
REMAND
The Veteran contends that his service-connected mood
disorder; degenerative joint disease, residuals of left knee
trauma; right knee patellofemoral syndrome; residuals of
right wrist injury; residuals of left wrist injury are more
severe than reflected by the assigned ratings. In addition,
he claims that the severity of these disorders warrants the
assignment of TDIU. The Board observes that the record
indicates possible worsening of these disabilities since the
last examinations, to include a left wrist surgery in
December 2006, subsequent to the most recent VA examination.
It is noted that the Veteran has not been afforded a VA
examination for compensation purposes in nearly three years
(in May 2006 in connection with his TDIU claim).
Given the passage of time since his most recent examination,
his December 2006 left wrist surgery, and the allegations set
forth by the Veteran herein, the Board finds that VA
examinations would assist the Board in clarifying the extent
of the Veteran's disabilities and would be instructive with
regard to the appropriate disposition of the issues under
appellate review. See Snuffer v. Gober, 10 Vet. App. 400,
403 (1997) (a veteran is entitled to a new examination after
a two-year period between the last VA examination and the
veteran's contention that the pertinent disability had
increased in severity); see also Green v. Derwinski, 1 Vet.
App. 121, 124 (1991) (holding that VA's statutory duty to
assist includes a thorough and contemporaneous medical
examination). Accordingly, this matter must be remanded for
VA examinations to ascertain the current severity of the
Veteran's claimed disabilities.
In this regard, as noted above, the Veteran underwent general
medical and psychiatric examinations on connection with his
TDIU claim in May 2006; however, the examiner commented that
the examination of the Veteran's joints was difficult because
of his constant grimacing and his active resistance to any
movement of his joints. The examiner found this response
affected and exaggerated. The Board points out that, while
it is the responsibility of VA to obtain sufficient evidence
to render an informed decision in a case, the Court has held
that VA's duty to assist the veteran in developing the facts
and evidence pertinent to a veteran's claim is not a one-way
street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
Therefore, the Veteran is hereby placed on notice that he
should present at any scheduled VA examination in a courteous
and cooperative manner, and that failure to cooperate so that
pertinent information with regard to his claim can be
obtained might adversely affect his appeal. See Connolly v.
Derwinski, 1 Vet. App. 566, 569 (1991); 38 C.F.R. § 3.655
(2008).
Additionally, review of the claims file suggests that the
Veteran continues to receive medical treatment from VA. Any
VA medical records are deemed to be constructively of record
in proceedings before the Board and should be obtained prior
to further review of the claims file. Bell v. Derwinski, 2
Vet. App. 611 (1992). The record further suggests that the
Veteran has been in receipt of follow-up treatment for his
wrists at the University of Southern Alabama from F. N. M.,
M.D. Copies of these records should also be requested.
The Veteran's TDIU claim is deferred pending the outcome of
the increased rating claims.
Accordingly, the case is REMANDED for the following action:
1. The RO should contact the Veteran and
request that he furnish the names,
addresses, and dates of treatment of all
medical providers, VA as well as non-VA,
from whom he has received treatment for his
claimed disabilities since November 2001
(one year prior to the effective date of
service connection and schedular ratings
currently in effect.) After obtaining any
necessary authorization from the Veteran,
the RO should attempt to obtain a copy of
all indicated records not already
associated with the claims folder. In
addition, the RO should request copies of
treatment records from the University of
Southern Alabama and Dr. F.N.M. since
December 2007.
2. Schedule the Veteran for a VA
orthopedic examination to assess the
current severity of his bilateral elbow
and bilateral knee disabilities.
The designated VA examiner must conduct
all necessary testing needed to make this
determination, including range of motion
studies (measured in degrees, with normal
range of motion specified), and the
examiner should review the results of any
testing prior to completion of the
examination report. The examiner must
also determine whether there are objective
clinical indications of pain/painful
motion, weakened movement,
premature/excess fatigability, or
incoordination and, if feasible, these
determinations should be expressed in
terms of the degree of additional range of
motion loss due to such factors. This
includes instances when these symptoms
"flare-up" or when the elbows and knees
are used repeatedly over a period of time.
This determination should be portrayed, if
feasible, in terms of the degree of
additional range of motion loss due to
these factors.
Also regarding the Veteran's knees, the
examiner should indicate whether the
Veteran has any instability in either knee
(aside from the arthritis) and, if he
does, the severity of it (e.g., slight,
moderate or severe), or episodes of
locking.
Regarding the Veteran's wrists, the
examiner should also provide specific
findings of whether ankylosis of the left
wrist is present, and if so, whether it is
favorable or unfavorable. If ankylosis is
found to be favorable, the examiner should
state at what range it is ankylosed (e.g.,
is it favorable within 20 to 30 degrees of
flexion). If it is found to be
unfavorable, the examiner should state
whether it is unfavorable in any degree of
palmar flexion, or with ulnar or radial
deviation; or in the alternative, whether
it is extremely unfavorable so as to be
equivalent to the loss of use of the hand.
The examiner must also provide an opinion
regarding the extend to which the service-
connected orthopedic disabilities affect
the veteran's employability.
Any indications that the Veteran's
complaints or other symptoms are not in
accord with the objective findings on
examination should be directly addressed
and discussed in the examination report.
A complete rationale for all opinions
expressed should be provided. If the
examiner is unable to provide the
requested opinion without resorting to
speculation, it should be so stated.
3. Schedule the Veteran for a VA
psychiatric examination. The claims file,
a copy of this remand, and a copy of the
VA orthopedic examination report requested
in paragraph 2 must be made available to
and reviewed by the examiner in
conjunction with the examination. All
necessary tests should be conducted.
Following examination of the Veteran, the
examiner should identify what symptoms, if
any, the Veteran currently manifests or
has manifested in the recent past that are
attributable to his service-connected mood
disorder. The examiner must conduct a
detailed mental status examination. The
examiner should assign a Global Assessment
of Functioning (GAF) score for the
Veteran's mood disorder consistent with
the American Psychiatric Association:
Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (DSM-IV)
and explain the significance of the score.
In addition, the examiner is requested to
provide a medical opinion as to the
Veteran's overall employability,
specifically identifying all service-
connected disabilities impacting upon his
employability.
Any indications that the Veteran's
complaints or other symptoms are not in
accord with the objective findings on
examination should be directly addressed
and discussed in the examination report.
A complete rationale for all opinions
expressed should be provided. If the
examiner is unable to provide the
requested opinion without resorting to
speculation, it should be so stated.
4. When the development has been
completed, the RO should review the case
again based on the additional evidence.
If the benefits sought are not granted,
the RO should furnish the Veteran and his
representative with a Supplemental
Statement of the Case, and should give the
Veteran a reasonable opportunity to
respond before returning the record to the
Board for further review.
The Board intimates no opinion as to the outcome of this
case. The appellant need take no action until so informed.
The purpose of this REMAND is to ensure compliance with due
process considerations.
The purpose of the examination requested in this remand is to
obtain information or evidence (or both) which may be
dispositive of the appeal. Therefore, the veteran is hereby
placed on notice that pursuant to 38 C.F.R. § 3.655 (2008)
failure to cooperate by attending the requested VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs